6 legal issues outside the aviation regulatory framework affecting drone operations.
Published: 22 June 2019
While the Civil Aviation Safety Regulations and Part 101 Manual of Standards cover the lion’s share of drone specific regulations, as we know, we operate drones in the greater legal landscape.
This article outlines 6 legal issues outside the aviation regulatory framework which are worth thinking about. A few simple steps now can reduce the fallout if shit hits the propeller later. Let’s fly…
 Strict Liability
The vast majority of drone offences are ‘strict liability’. A ‘strict liability‘ offence is one where it does not matter whether or not you intended to commit the offence, if you performed the physical act, then you are presumed guilty.
For example, you are generally not allowed to operate your drone greater than 400 feet Above Ground Level (AGL). This is an offence of strict liability.
That is, if you are flying greater than 400 feet AGL but are unaware that you are flying above 400 feet AGL; or not intending to fly above 400 feet AGL; or did not know it was an offence to fly above 400 feet AGL, none of these reasons generally amount to a defence.
That being said, there is a potential defence of ‘honest mistake of fact’. This is a technical argument and requires more than simply not knowing that you were breaking the law. I’ve run one of these cases in court before, trickier than a triple somersault with a pike.
Take-away: the act of breaching the drone regs is an automatic presumption of guilt, even if you did not intend to breach.
 Vicarious Liability in employment
Vicariously liability refers to when an employer is liable for acts committed by its employees in the course of their employment.
To be ‘in the course of employment’, an employee’s act must either have been authorised by the employer or be so closely linked to an authorised act that it is considered to be part of that act.
For example, an employee drone pilot is doing their job in the usual and responsible manner and an accident occurs during flight and causes damage. In very general terms (and putting aside extenuating circumstances) while it may have been the pilot’s fault, the pilot’s employer will generally be liable, that is vicariously liable for the employee pilot’s actions.
Similarly, if you fly for your own company and an accident occurs, then the idea is that the company would be vicariously liable for your actions thereby protecting you from personal liability.
On the other side of the coin, an employer is not liable for acts of an employee who was ‘on a frolic of their own’. For example, someone who is part of a drone operation but is not the pilot, who then pilots the drone and causes damage may not be covered by their employer’s vicarious liability obligations and therefore be personally liable.
Take-away: documented policies and procedures with job descriptions may help to establish when someone is acting ‘in the course of their employment’ OR are ‘on a frolic of their own’.
The Privacy Act regulates the handling of personal information about individuals. ‘Personal information’ is information or an opinion about an individual who is identified or is reasonably identifiable.
The Privacy Act includes thirteen Australian Privacy Principles (APPs) which specify how ‘APP Entities’ must handle, use and manage personal information.
The APPs generally apply only to Australian Government agencies and businesses with an annual turnover of more than $3 million. However, some small businesses that do not meet the $3m annual turnover threshold may still be subject to the APPs, including businesses that sell or purchase personal information, and businesses contracted for a Commonwealth contract.
Drone operators need to consider the extent to which they may be collecting personal information as well as whether they are subject to the APPs.
Another piece of privacy-related legislation is the Surveillance Devices Act 2007 (NSW). In general, this contains provisions that relate to the use of listening devices, optical surveillance devices, and data surveillance devices. A drone may fall into one or all of those categories. Generally speaking, this Act makes it illegal to monitor a person’s activity in a private setting without their consent.
Take-away: determine if you are subject to the Australian Privacy Principles; be careful not to collect data from people in private settings without their permission.
 Data Breach Legislation
Following from the above, organisations that are subject to the Privacy Act (APP entities), are required to notify affected individuals and the Office of the Australian Information Commissioner when a data breach occurs and is likely to result in serious harm to individuals whose personal information is involved in the breach.
Organisations must be prepared to conduct a quick assessment of a suspected data breach to determine whether it is likely to result in serious harm, and as a result require notification.
Again, drone operators need to consider the extent to which they may be collecting personal information as well as whether they are subject to the APPs.
Take-away: if you experience a data breach, you may be obliged to notify the Office of the Australian Information Commissioner and those affected by the breach.
 Noise Restriction Legislation
At present, there are no drone-specific noise regulations however some drone operations may require approvals under the Federal Air Navigation (Aircraft Noise) Regulations.
In NSW, drones are captured under the Protection of the Environment Operations Act (PEO Act).
In the event that a person finds the sound of a drone offensive, the PEO act allows a person to seek a Noise Abatement Order from the Court which may direct the drone operator to stop the offensive noise.
As the coding dries on this very article, the Australian Government Department of Infrastructure, Transport, Cities and Regional Development is about to kick-off a review to determine the appropriate scope and breadth of noise regulation for drones.
Take-away: watch…or more appropriately, listen to this space.
 Occupational Health & Safety
In February 2019, the High Court of Australia decided that while civil aviation is typically governed only by Commonwealth Aviation Law; State and Territory occupational health and safety laws may also apply to aviation operators, which by definition, includes drones. We have written specifically about this case and its implications here.
With all this red tape can I even get my drone off the ground without breaking a law? Well, having the above in mind, thinking how you might apply the above ‘take-aways’, and some specialist advice where you see an unacceptable risk, you CAN fly within the law and with peace of mind.
The Drone Lawyer
22 June 2019